Error of Law: An Exception to the Discoverability Principle?

32 Pages Posted: 21 Mar 2019 Last revised: 5 Nov 2020

See all articles by Samuel Beswick

Samuel Beswick

Peter A. Allard School of Law, University of British Columbia; Harvard Law School

Date Written: August 2, 2018

Abstract

Under Canadian common law, the limitation principle of discoverability applies to errors of fact, but not to errors of law. This error-of-law exception is a problematic doctrine. It appears to resurrect the ostensibly defunct fact/law distinction in civil claims. It stands in stark contrast to contemporary English precedent on the discoverability of mistakes of law. It controverts the Supreme Court of Canada’s claim that discoverability is a “general rule” for the interpretation of limitation periods on causes of action. And it considerably curtails the reach of the discoverability principle and the potential for plaintiffs labouring under an error of law to benefit from an extended limitation period. In practice, the error-of-law exception may overly curtail rights by protecting those who make legal rules while impeding those who have been harmed by unjust laws. This article develops a revised understanding of the error-of-law rule that strikes a better balance between protecting past reliance interests and vindicating plaintiffs’ rightful positions.

Keywords: private law, restitution, mistake of law, Limitation Act, limitation postponement, reasonable diligence, Kleinwort Benson, Deutsche Morgan Grenfell, Franked Investment Income Group, Prudential Assurance, Nielsen, Central Trust v Rafuse, Goodswimmer v Canada, Salna v Awad, Canadian Legion Norwood

Suggested Citation

Beswick, Samuel, Error of Law: An Exception to the Discoverability Principle? (August 2, 2018). Osgoode Hall Law Journal, vol. 57(2), Forthcoming, 2020, Available at SSRN: https://ssrn.com/abstract=3357709 or http://dx.doi.org/10.2139/ssrn.3357709

Samuel Beswick (Contact Author)

Peter A. Allard School of Law, University of British Columbia ( email )

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Vancouver, British Columbia V6T 1Z1
Canada

HOME PAGE: http://allard.ubc.ca/about-us/our-people/samuel-beswick

Harvard Law School ( email )

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United States

HOME PAGE: http://scholar.harvard.edu/beswick

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